At Blake Morgan we want to understand what visitors to our website are browsing to ensure that we continue to produce content that is interesting and of value. We do this using 'cookies', which collect data in an anonymous form and do not contain any sensitive information. Find out more about how we use cookies and how to manage them. Should you continue to use our website, we will assume that you have consented to the use of cookies in accordance with our cookies policy unless you choose to disable the cookies.

High Level Summary

This was an appeal in respect of the factual determination which had been made by the Conduct and Competence Committee during the course of a conduct hearing. The hearing began in April 2015 before resuming and concluding in July 2015.

The Appellant had been the Home Manager and Matron of a nursing home between 1994 and 2011 and faced 17 allegations relating to her conduct during this period. It was alleged that her fitness to practise was impaired by reason of misconduct.

The Committee had determined that some or all of the elements of Allegations 1, 2, 3, 4, 7, 10, 13, 14 and 15 had been found proved and that her fitness to practise was currently impaired. A striking off order was made.

The Appellant claimed that (1) she had not been afforded a fair hearing contrary to the requirements of Article 6 ECHR and that (2), the adverse fact finding was against the weight of the evidence.

The appeal was allowed in part in respect of the second ground. The Court remitted a number of the allegations to a fresh Committee for reconsideration. Though the procedure that had been adopted by the Committee had been conspicuously fair, its approach to the question of credibility and reliability of witnesses in determining the factual allegations had been flawed. There had been inadequate scrutiny of the evidence which had been placed before it.

Facts

In relation to (1), the Appellant had asserted that the provision of disclosure by the NMC that she had sought had been delayed for five months, that the NMC had sought to 'cherry pick' the evidence that it had sought to rely on and had unfairly changed its stance in relation to those witnesses that it intended to call, reducing the original list of sixteen witnesses to seven before reverting back to sixteen.

The Court concluded that the disciplinary process was an adversarial process and that therefore it was a matter for the NMC to decide what evidence it sought to rely upon to prove the allegations. It further determined that the NMC could not be blamed for failing to call witnesses who might have supported the Appellant. The Court concluded that in relation to the late disclosure of documents, the Appellant had not been placed at any procedural disadvantage.

The Appellant also asserted that there had been a breach of Article 6 ECHR on two further grounds. It was asserted that there had been substantial delay on the part of the NMC in proceeding with the case. Though the allegations dated back a number of years, the Court noted that the disciplinary process had only been initiated in 2014 and that the NMC had needed to consider allegations of conduct which had spanned a 17 year period. The Court concluded that a fair hearing was still possible and that the time taken to bring the matter before the Committee had caused no prejudice.

The Appellant further asserted that she had been unable to pay the expenses of witnesses who she had wished to call to give evidence. The Court concluded that fair access to justice did not require the regulatory authority to finance the defence of the registrant as well as its own case.

In relation to (2), the Appellant was successful in part:

In relation to the elements of Allegation 3 which had been found proved, (relating to the safe storage of medication as well as medication audits), the Court concluded that overreliance had been placed upon Witness 16's untested and uncorroborated evidence. It formed the view that the 'inherent improbabilities' of what had been alleged by Witness 16 and the inconsistencies between her evidence and that of Witness 1 had not been properly 'grappled with'. The Court substituted its own findings in respect of Allegation 3 and determined that it had not been found to be proved.

In relation to Allegation 7.1, (which had alleged that the Appellant had instructed Registrant C to administer a nasogastric tube without the recommendation of medical staff), the Court concluded that no adequate reasoning had been provided for the decision that had been made which in any event did not appear to have been supported by the evidence. The Court concluded that proof of the allegation had been wholly dependent upon the evidence of Witness 11 whose evidence had been 'inherently implausible' and 'unreliable'. The Court therefore substituted its own findings and determined that it had not been found to be proved.

In light of its findings in relation to Allegation 3 and 7, the Court determined that it was unfair for Allegations 2 and 3 to stand as it was clear that the Committee had failed to take into account material considerations impacting on the strength of the defence as well as the credibility of key witnesses.In relation to Allegation 10 (which had related to the failure to have safe systems in place to ensure that Safeguarding Alerts were raised), the Court concluded that the Committee's reasoning was 'entirely deficient' and that there was no basis on which it could have found the allegation proved.The Court concluded that the Committee had been entitled to find Allegations 13, 14 and 15 proved but decided to quash the Committee's decision in respect of a number of the elements within Allegations 1 and 2. Both Allegations 1 and 2 had been reliant on Witness 11's evidence. Despite its 'extreme disquiet' about some of the evidence and the 'flawed approach' to the examination of the credibility of the witnesses, the Court considered that it was unable to substitute its own decisions for the remaining factual decisions, namely those relating to Allegations 4, 13, 14 and 15.

The Court directed that those findings which had been quashed along with Allegations 4, 13, 14 and 15 ought to be remitted for consideration by a fresh Committee. The Court further directed that in the event that the hearing did not take place within 5 months (and was preceded by a directions hearing within 1 month), those allegations would be 'automatically struck out'.

About the Author

A Barrister within the Professional Regulatory team in London. Christopher provides advice and advocacy and undertakes investigative work for a range of regulators.

This case is significant in two respects. First, it confirms that section 40 of the Dentists Act 1984, which precludes unregistered persons (which encompasses suspended dentists) from receiving payment for dentistry carried out by other people...

Blake Morgan LLP (registered number OC392078) is a limited liability partnership registered in England and Wales with its registered office at Harbour Court, Compass Road, North Harbour, Portsmouth PO6 4ST. It is authorised and regulated by the Solicitors Regulation Authority. A full list of its members is available at all of its offices. The term "partner" is used to mean a member of the firm or employee who is a lawyer with equivalent standing and qualifications.